Jeffrey M. McCall: No consistency in school free-expression rulings

Friday

Mar 28, 2014 at 12:01 AM

GREENCASTLE, Ind.Public school administrators must have their heads spinning as they try to sort out recent court decisions regarding the free-expression rights of students. Principals have the almost...

By Jeffrey M. McCALL

GREENCASTLE, Ind.

Public school administrators must have their heads spinning as they try to sort out recent court decisions regarding the free-expression rights of students. Principals have the almost impossible task of balancing constitutionally protected student expression with keeping order in schools, where education is the primary objective.

In a controversial ruling issued this winter by the Ninth Circuit Court of Appeals, a three-judge panel ruled administrators in a northern California school district could legally prevent students from wearing American flag T-shirts on Cinco de Mayo, an important day for the school’s Mexican-American students. The judges sided with school officials who feared violence could be sparked by the display of American patriotism.

First Amendment legal scholar and UCLA law professor Eugene Volokh decried the decision because it lets those who would commit violence silence the free expression of others. He called such threats a “heckler’s veto,” and called on courts to protect speakers and sanction those who would threaten violence.

Lawyers for the flag-wearing students have petitioned for the case to be reheard before an 11-judge panel of the Ninth Circuit, but Volokh doubts the Court will agree to rehear. In that event, the students could approach the Supreme Court as a last resort, but the odds of getting a hearing there are slim, too. Thus, this decision barring American flag shirts at school could well stand.

Interestingly, a federal court in Michigan ruled in 2003 that the prospect of violence was not sufficient for school officials to sanction a student who wore a T-shirt labeling President Bush an “international terrorist.”

But even though high school students in California can’t get constitutional protection to wear USA flag shirts, middle school students in Easton, Pa., have earned court protection to wear “I (heart) Boobies!” bracelets. The Third Circuit Court sided with the students, writing that the breast cancer awareness bracelets constituted students’ commenting on social issues. A lawyer for the school district said in a published report that the ruling leaves administrators with little guidance on how to control “aggressive double-entendres ... in the guise of some social or political cause.” Perhaps the school could have won this case if somebody had threatened violence against a bracelet-wearing student.

The Seventh Circuit Court recently sided with a student against school administration in a case involving a basketball player in Greensburg, Ind. The student opposed the coach’s haircut policy for players. The court panel ruled that the high school had discriminated against the male basketball player because female athletes had no hair policies. That case is also likely headed to more legal wrangling.

Odds are these recent student expression decisions won’t end the confusion, and in fact, might lead to even more litigation. New cases pitting students against school administrators pop up each week. A high school student in New York received a suspension this month for wearing a shirt that depicted the emblem of the National Rifle Association, an organization to which the outdoorsman student belongs. Second Amendment supporters will be happy to pick up the legal tab for this student.

Legal expenses are a major problem in these cases. Many families don’t have the resources to protect their students. School districts spend thousands of dollars that could be better used to support education.

The Supreme Court’s 1969 Tinker decision has long been the main guide in this arena. In that case, the court sided with students in Des Moines, Iowa, who wore black armbands to protest the Vietnam War. Justice Abe Fortas wrote for the majority, telling school officials that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Student speech rights could only be stifled when there is “substantial disruption of or material interference with school activities.”

But a key distinction must be made in terms of who causes the disruption. If the student expressing himself creates the disruption, that’s one thing. Tinker’s commitment to student expression means nothing, however, if the disruption is caused by others who threaten violence to shut people up. Surely, the Supreme Court can’t allow the banning of every shirt that could trigger a fight, especially when a shirt represents a symbol of the nation.

District courts around the country could use new Supreme Court guidance, and school districts’ legal budgets would also benefit.

Jeffrey M. McCall (jeffmccall@depauw.edu) is a professor of communication at DePauw University in Greencastle, Ind., and author of “Viewer Discretion Advised: Taking Control of Mass Media Influences.” On Twitter: @Prof_McCall

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